Opinion: Guest Opinions

Boulder County District Court Judge Patrick Butler has been strongly criticized in our community and around the country for the sentence he imposed on Austin Wilkerson who was convicted of sexual assault earlier this year. There is a petition to recall the judge, which is not possible under Colorado law. Judge Butler is precluded from responding on his own behalf under the Judicial Code of Conduct which provides that judges may not comment on cases and "shall not be swayed by public clamor or fear of criticism." What we know about his consideration of the sentence is limited to what he said in court while imposing the sentence. We are writing to address the limited statutory sentencing options available to the court and some of their practical effects.

Judges must follow the law and use their best judgment and experience in imposing sentences. To determine an appropriate sentence for any defendant convicted of a crime, a judge is to consider punishment, deterrence in the community and rehabilitation of the defendant. Judges must consider the long-term safety of society so that if a prison sentence is imposed the community will be safe when the defendant is ultimately released.

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Wilkerson was sentenced to two years in jail and 20 years of probation, and must register as a sex offender. The sex offender label and registration requirement most likely will be in place his entire life. The jail sentence provides for work release, which allows the prisoner to leave the lock-up to attend work or school and sex offender treatment, but requires substantial supervision over where and when he may leave the facility. He will be required to refrain from the use of alcohol, marijuana, and non-prescribed drugs. If Wilkerson violates the terms of work release and probation he may be brought back for re-sentencing under the terms of his felony conviction and potentially sent to prison.

If the court sentences a Class 4 sex felon to prison, as opposed to jail and probation, the prison sentence must be four years to life. Under Colorado's Lifetime Supervision Act, a sex offender sentenced to prison must complete treatment and apply for parole before he can be released. The minimum four-year prison sentence is "indeterminate," meaning there is no guarantee of release, ever.

The Colorado legislature has tasked the Sex Offender Management Board (SOMB) with determining the most effective way of keeping the community safe; making sure a sex offender is adequately rehabilitated is designed to protect the entire community long into the future. The SOMB establishes the specific treatment regimen for offenders based on a psycho-sexual evaluation prior to the felon being sentenced. The psycho-sexual evaluation and the pre-sentencing investigation report prepared by Probation are not public documents available for our scrutiny.

A person sentenced to prison on a sexual offense will not begin sex offender treatment until they are within four years or less of their parole eligibility date. Most prisons do not provide the mandatory treatment and offenders aren't moved to a facility that is able to offer treatment until they are prioritized to start treatment. Offenders who are classified as a low treatment priority are not placed on the priority referral list and therefore don't begin receiving treatment. After lengthy incarceration defendants are less amenable to treatment and more likely to pose a greater threat to society if and when they are released.

Wilkerson's sentence of two years of work release and 20 years to life of probation creates many protections for the community. Any missteps or failure to comply with the very strict conditions of the probation will result in him being brought back before the court for revocation of probation and re-sentencing. Sex offender probation is intensive supervised probation containing multiple requirements such as intensive counseling, polygraph testing, and monitoring. As a registered sex offender, Wilkerson's name and whereabouts will always be known; the conviction itself permanently punishes.

The law gave Judge Butler only two options: the sentence imposed, or imprisoning the defendant indefinitely for between four years and life. The problem is not which of these sentences could have been imposed, but with the poor and limited options available to Judge Butler. The discussion about the defendant's sentence must take into account Colorado's sentencing options and the funding decisions we make regarding our prison system, including funding decisions that implicate the prison system's ability to rehabilitate those who require it.

Mary Claire Mulligan is past president of the Colorado Criminal Defense Bar. Also signing on to this guest opinion are past presidents of the Boulder County Bar Association David B. Harrison, John W. Gaddis, Sonny Flowers, Anton Dworak, Jim Christoph, Bob Miller, Helen Stone and Christine A. Coates.

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